throbber
Case 6:20-cv-00973-ADA Document 87 Filed 06/28/21 Page 1 of 24
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE WESTERN DISTRICT OF TEXAS
`WACO DIVISION
`
`TMT SYSTEMS, INC.,
`
`Plaintiff,
`
`Civil Action No. 6:20-cv-973-ADA
`
`v.
`
`MEDTRONIC, INC. AND
`MEDTRONIC USA, INC,
`
`Defendants.
`
`PUBLIC VERSION
`
`DEFENDANTS MEDTRONIC, INC.’S AND MEDTRONIC USA, INC.’S
`OPENING CLAIM CONSTRUCTION BRIEF
`
`MEDTRONIC 1043
`
`

`

`Case 6:20-cv-00973-ADA Document 87 Filed 06/28/21 Page 2 of 24
`
`TABLE OF CONTENTS
`
`Page(s)
`
`Introduction ..........................................................................................................................1
`Technology Background and the Asserted Invention ..........................................................1
`A.
`Percutaneous Endovascular Stent Grafts .................................................................1
`B.
`The ’393 Patent ........................................................................................................3
`1.
`“Telescoping” Arm ......................................................................................4
`2.
`The Shape of a M .........................................................................................5
`3.
`The Asserted Claims ....................................................................................6
`The Court Should Adopt Medtronic’s Proposed Constructions Because they are
`the Plain Meaning of the Claim Language as Supported by the Intrinsic Evidence............6
`A.
`Disputed term: whether the preamble is limiting (claims 1, 26) ..............................6
`B.
`Disputed term: “endovascular apparatus” (claims 1, 26) .........................................7
`C.
`Disputed terms: “telescoping arm” (claims 1, 26) & “telescoping arms”
`(claims 1, 26) ...........................................................................................................8
`Disputed term: “perimeter of variable length” (claim 1) .......................................12
`Disputed terms: “operatively connected” / “connected” (claims 1, 26) &
`“the arms being operatively connected to one another so as to form a
`perimeter of variable length” (claim 1) ..................................................................13
`Disputed term: “operatively coupled” / “coupled” (claims 1, 26) & “the
`telescoping arms are operatively coupled to one another at an angle so that
`multiple telescoping arms form the shape of a M” (claim 1) ................................14
`Disputed term: “shape of a M” / “shape of multiple Ms” / “M
`configuration” (claims 1, 2, 26) .............................................................................15
`Conclusion .........................................................................................................................20
`
`
`D.
`E.
`
`F.
`
`G.
`
`i
`
`I.
`II.
`
`III.
`
`IV.
`
`
`
`
`

`

`Case 6:20-cv-00973-ADA Document 87 Filed 06/28/21 Page 3 of 24
`
`TABLE OF AUTHORITIES
`
`Page(s)
`
`CASES
`
`AK Steel Corp. v. Sollac and Ugine, 344 F.3d 1234 (Fed. Cir. 2003) ...........................................12
`
`Ancora Technologies, Inc. v. LG Electronics Inc., No. 1-20-CV-00034-ADA,
`2020 WL 4825716 (W.D. Tex. Aug. 19, 2020) (Albright, J.) ...................................................7
`
`Arthrex, Inc. v. Smith & Nephew, Inc., 935 F.3d 1319 (Fed. Cir. 2019) .......................................15
`
`Baker Hughes Oilfield Operations, Inc. v. Prod. Tool Sol., Inc., No. 1-17-CV-
`291-LY, 2020 WL 1916691 (W.D. Tex. Apr. 17, 2020) ...........................................................7
`
`CollegeNET, Inc. v. MarketLinx, Inc., No. A-09-CA-544-SS, 2010 WL 11566364
`(W.D. Tex. Sept. 14, 2010) ......................................................................................................13
`
`Continental Circuits LLC v. Intel Corp., 915 F.3d 788 (Fed. Cir. 2019) ......................................11
`
`O2 Micro Int'l Ltd. v. Beyond Innovation Technology Co., 521 F.3d 1351 (Fed.
`Cir. 2008) .................................................................................................................................16
`
`Phillips v. AWH Corp., 415 F.3d 1303 (Fed. Cir. 2005) ....................................................... passim
`
`Power-One, Inc. v. Artesyn Technologies, Inc., 599 F.3d 1343 (Fed. Cir. 2010) ..........................13
`
`Woods v. DeAngelo Marine Exhaust, Inc., 692 F.3d 1272 (Fed. Cir. 2012) .................................15
`
`
`
`
`
`ii
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`

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`Case 6:20-cv-00973-ADA Document 87 Filed 06/28/21 Page 4 of 24
`
`
`
`I.
`
`INTRODUCTION
`
`TMT Systems, Inc.’s (“TMT’s”) proposed claim constructions find no support in the
`
`patent’s teachings or the understanding of a person of ordinary skill in the art. Instead, they are
`
`result-oriented, after-the-fact positions designed to cause the Court to erroneously tailor the
`
`scope of the claims to capture the accused Endurant products, while avoiding the prior art.
`
`Indeed, TMT created the cartoon image below for its brief, egregiously calling its mock-up of
`
`the accused Endurant product the “Invention,” which it compares to unnamed “Prior Art.” Dkt.
`
`42 at 3; see also id. at 2.1
`
`Invention
`
`Pl'io1· Al't
`
`
`
`While wholly inappropriate in a Markman brief, TMT’s approach puts a fine point on the present
`
`dispute: TMT seeks to (1) read into its claims a very particular “M” design found nowhere in
`
`the ’393 patent (but which is a specific M-shape in Endurant) and (2) read out of its claims the
`
`alleged “invention” actually disclosed and claimed in the ’393 patent—a “telescoping arm.” The
`
`Court should reject TMT’s attempt to use claim construction to transform its patent into
`
`something it did not invent. Instead, the Court should construe the claims as the Federal Circuit
`
`requires—according to their plain meaning in light of the intrinsic evidence.2
`
`II.
`
`TECHNOLOGY BACKGROUND AND THE ASSERTED INVENTION
`A.
`Percutaneous Endovascular Stent Grafts
`
`1 The graphic on page 2 of TMT’s brief is from an uncited Medtronic publication that appeared
`in TMT’s complaint. Dkt. 37 at 21.
`2 By filing this brief, Medtronic, Inc. and Medtronic USA, Inc. do not waive their objection to
`proceeding in this venue nor their pending motions under Rule 12(b)(6).
`
`
`
`
`
`

`

`Case 6:20-cv-00973-ADA Document 87 Filed 06/28/21 Page 5 of 24
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`The aorta is the largest artery in the human body.
`
`Abdominal aortic aneurysms (“AAA”) are a common type of
`
`deteriorating disease caused by weakening of the wall of the aorta in
`
`the abdomen. See Dkt. 21-2 (hereinafter, “’393 patent”), 1:15-21.
`
`The weakened wall, under the pressure of flowing blood, balloons outward similar to a water
`
`balloon. See id. Such a deformity in the wall of a blood vessel affects its ability to conduct
`
`blood. See id. It can be deadly if it ruptures. Id., 1:22-24; Declaration of Elliot Chaikof
`
`(“Chaikof Decl.”) ¶ 27-28.
`
`For decades, “percutaneous endovascular stent grafts” have been used to
`
`treat AAA. They generally consist of metal scaffolding “stent” rings that are sewn
`
`into a pliable fabric “graft.” Chaikof Decl. ¶ 28, 73. “Percutaneous endovascular”
`
`stent grafts are placed using a minimally invasive technique in which the stent
`
`graft is delivered in a collapsed state with a catheter. ’393 patent, 1:43-48. Once
`
`placed at the site of the aneurysm, the stent rings expand radially outward and secure the graft to
`
`the wall of the aorta. Chaikof Decl. ¶ 28, 75. The graft fabric then acts as a replacement for the
`
`section of the aorta affected by the aneurysm. Id. Medtronic AVE, a Medtronic, Inc. subsidiary,
`
`was a pioneer in developing endovascular stent grafts for treating AAA. For example, Medtronic
`
`AVE’s AneuRx stent graft was approved for use in 1999, and its Talent stent graft was under
`
`clinical investigation by 2000. Chaikof Decl. ¶ 70, 73. Both these and other endovascular stent
`
`grafts available in the prior art were circular, as shown below, and their stents were made of a
`
`metal wire or wires that extended around the circumference of the graft. Chaikof Decl. ¶ 70-75;
`
`Declaration of Gregory H. Lantier (“Lantier Decl.”), Ex. 1, Criado 2000 at 129-33.
`
`
`
`2
`
`

`

`Case 6:20-cv-00973-ADA Document 87 Filed 06/28/21 Page 6 of 24
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`Lantier Decl., Ex. 1, Criado 2000 at 129 (excerpted image showing circular shape in red and
`
`
`
`stent in blue).
`
`
`(a) Talent Stent Graft
`
`(b) Zenith Stent Graft
`
`(c) Ancure Stent Graft
`
`Lantier Decl., Ex. 1, Criado 2000 at 129-31 (showing stents in blue).
`
`B.
`
`The ’393 Patent
`
`The application for U.S. Patent No. 7,101,393 (“the ’393 patent”), which is titled
`
`“Percutaneous Endovascular Apparatus for Repair of Aneurysms and Arterial Blockages,” was
`
`filed on July 22, 2003 against this already crowded field of prior art. See ’393 patent. The sole
`
`named inventor of the ’393 patent is Dr. Timur Sarac, who is also the sole proprietor of plaintiff
`
`TMT. Dkt. 37 at 1-2.
`
`
`
`The ’393 patent’s written description uses the phrase “endovascular graft” to refer to the
`
`entire stent graft and the phrase “expandable attachment device” or “expandable ring” to refer to
`
`the stent. See, e.g., ’393 patent, 1:48-51; 1:66-2:2. Universally in the patent, the “attachment
`
`device” is created by connecting a plurality of “telescoping arms that are joined together to form
`
`an expandable ring” that “may function similarly to stents.” Id., 1:66-2:2. The patent describes
`
`
`
`3
`
`

`

`Case 6:20-cv-00973-ADA Document 87 Filed 06/28/21 Page 7 of 24
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`its alleged invention as follows:
`
`The expandable attachment device comprises a plurality of telescoping arms that are
`attached to form an expandable ring. Each telescoping arm is similar to an expandable
`presentation pointer. Alternatively, each telescoping arm may function like an accordion.
`
`Id., 2:36-41. The patent describes different ways to position the plurality of “telescoping arms”:
`
`As one of ordinary skill might appreciate, the attachment device may take variety of
`shapes depending upon the configuration of the telescoping arms 40 and the fixation
`components 36. For example, referring to FIGS. 12A D, the telescoping arms 40 may be
`positioned in a single plane.
`
`Alternatively, referring to FIGS. 13A U, the telescoping arms 40 may be positioned in
`multiple planes in, for example, what is referred to herein as an “M configuration.”
`
`
`
`Id., 5:31-38, Figs. 12A-12C, 13G, 13N, 13U. There is no disclosure anywhere in the ’393
`
`
`
`patent of a circular stent consisting of a single wire.
`
`1.
`
`“Telescoping” Arm
`
`Every embodiment in the ’393 patent depicts telescoping arms that each “telescope.”
`
`’393 patent, 5:16-21. The patent likens the preferred embodiment of telescoping arms to a
`
`“presentation pointer.” Id., 2:38-39. The written description explains that these segments are
`
`incrementally sized and are in slidable contact with each other. Id., 5:17-19. “For example, each
`
`
`
`4
`
`

`

`Case 6:20-cv-00973-ADA Document 87 Filed 06/28/21 Page 8 of 24
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`telescoping arm 40 may be constructed from what is referred to generally as ‘nested tubes,’” as
`
`depicted in Figures 4B and 4C in the patent reproduced and annotated below. Id., 5:19-21; 6:65-
`
`67.
`
`""'-.
`
`.,,
`
`JI
`
`Hy,~$
`
`H§:~C
`
`JI
`
`42
`
`42
`
`42
`
`42
`
`42
`\
`
`
`
`Id., Figs. 4B, 4C (color annotations added). Although every figure in the patent depicting
`
`“telescoping arms” shows the “presentation pointer” embodiment (see id., Fig. 4B, 4C, 7, 8, 9,
`
`12A-D, 13, 14, 15, 16, 17), the patent includes a single sentence in the Summary that references
`
`an alternative to the “presentation pointer” preferred embodiment in which “each telescoping
`
`arm may function like an accordion.” Id., 2:39-40 (emphasis added). There is no figure in the
`
`patent that is referred to as illustrating this embodiment.
`
`2.
`
`The Shape of a M
`
`An “M” configuration of telescoping arms is rarely described and is depicted only twice
`
`in the ’393 patent: once in connection with Figure 13 and once in connection with Figure 15.
`
`Figure 13 of the ’393 patent depicts “attachment device 20” with “telescoping arms 40” in an “M
`
`configuration,” as shown below. ’393 patent, 5:36-38. Figure 13 illustrates the “telescoping
`
`arms” at “various states of expansion.” Id., 3:38-40. As shown in the annotated figures, the
`
`arms have nested segments with different diameters—like a presentation pointer—that allow
`
`each arm to telescope.
`
`
`
`5
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`

`

`Case 6:20-cv-00973-ADA Document 87 Filed 06/28/21 Page 9 of 24
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`
`
`Id., Figs. 13M, 13N (annotated, excerpted, and coloring added).
`
`In connection with Figure 15 (reproduced below), the patent also describes “telescoping
`
`arms” in an “M configuration” (attached to a fifth telescoping arm) that can help hold the tubular
`
`sleeve 12 of the endovascular apparatus open. ’393 patent, 6:24-40. Like the “telescoping arms”
`
`depicted in the other figures of the patent, Figure 15’s telescoping arms have nested segments
`
`that slide into one another.
`
`
`
`Id., Fig. 15 (coloring added).
`
`3.
`
`The Asserted Claims
`
`TMT asserts claims 1, 2, 4, 10, 11, and 26 (independent claims in bold underlining).
`
`III. THE COURT SHOULD ADOPT MEDTRONIC’S PROPOSED
`CONSTRUCTIONS BECAUSE THEY ARE THE PLAIN MEANING OF THE
`CLAIM LANGUAGE AS SUPPORTED BY THE INTRINSIC EVIDENCE
`A.
`
`Disputed term: whether the preamble is limiting (claims 1, 26)
`
`
`
`6
`
`

`

`Case 6:20-cv-00973-ADA Document 87 Filed 06/28/21 Page 10 of 24
`
`Term
`whether the preamble is
`limiting
`
`Medtronic’s Construction
`preamble is not limiting
`
`TMT’s Construction
`the preamble is limiting in its
`entirety
`
`“Courts presume that the preamble does not limit the claims.” Ancora Techs., Inc. v. LG
`
`Elecs. Inc., No. 1-20-CV-00034-ADA, 2020 WL 4825716, at *6 (W.D. Tex. Aug. 19, 2020).
`
`When “a patentee defines a structurally complete invention in the claim body and uses the
`
`preamble only to state a purpose or intended use for the invention,” the preamble is not limiting.
`
`Id. This presumption is only overcome when the preamble “recites essential structure or steps,
`
`or if it is ‘necessary to give life, meaning, and vitality’ to the claim.” Id. TMT’s arguments (see
`
`Dkt. 42 at 4-7) fail to overcome this presumption. Ancora, 2020 WL 4825716, at *6; Baker
`
`Hughes Oilfield Operations, Inc. v. Prod. Tool Sol., Inc., No. 1-17-CV-291-LY, 2020 WL
`
`1916691, at *17 (W.D. Tex. Apr. 17, 2020). The Court should find the preamble is not limiting.
`
`B.
`
`Disputed term: “endovascular apparatus” (claims 1, 26)
`
`Term
`“endovascular
`apparatus”
`
`Medtronic’s Construction
`preamble is not limiting
`
`TMT’s Construction
`“endovascular graft for the treatment of
`aneurysms or arterial blockages”
`
`This term appears only in the preamble and thus does not require construction. Ancora,
`
`2020 WL 4825716, at *8. But even if this term were subject to construction, TMT’s
`
`construction improperly narrows the scope of the term beyond its plain and ordinary meaning
`
`and should be rejected. The claim phrase is “endovascular apparatus.” TMT’s proposed
`
`construction itself includes the word “endovascular,” and thus does nothing to assist the jury
`
`with understanding that word. The jury will have no difficulty understanding the other word in
`
`this claim term—“apparatus.” The Court should reject TMT’s attempt to import numerous
`
`limitations from the written description to improperly narrow the scope of that term. TMT’s
`
`choice to claim an “apparatus,” not a “graft,” illustrates that had it wanted to claim a “graft”
`
`(’393 patent, 1:43) instead, it certainly knew how to do so. Thus, to the extent this term is even
`
`
`
`7
`
`

`

`Case 6:20-cv-00973-ADA Document 87 Filed 06/28/21 Page 11 of 24
`
`limiting, it should be given its plain meaning, not rewritten as TMT proposes.
`
`C.
`
`Disputed terms: “telescoping arm” (claims 1, 26) & “telescoping arms”
`(claims 1, 26)
`
`Term
`“telescoping arm”
`
`“telescoping arms”
`
`Medtronic’s Construction
`“plain and ordinary meaning,
`which is an arm that
`telescopes, such as in the
`manner of a presentation
`pointer or an accordion”
`“plain and ordinary meaning,
`which is more than one
`telescoping arm”
`
`TMT’s Construction
`“plain and ordinary meaning,
`which is one of the
`telescoping arms”
`
`“arms that telescope in the
`manner of a presentation
`pointer and/or an accordion”
`
`Telescoping arms are the centerpiece of what the ’393 patent presents as its invention.
`
`As explained above, the ’393 patent’s figures only depict telescoping arms configured as a
`
`presentation pointer (e.g., with nested tubes). That embodiment is likewise repeatedly described
`
`in the patent’s written description. See, e.g., ’393 patent, 5:12-21, 5:36-46, 5:47-67, 6:38-40. A
`
`single sentence in the Summary describes an alternative to this presentation-pointer style
`
`telescoping arm where “each telescoping arm may function like an accordion.”3 Id. , 2:39-40
`
`(emphasis added). Medtronic agrees that the claims of the ’393 patent are broad enough to cover
`
`this “accordion” embodiment. But, as the patent states, “each telescoping arm may function like
`
`an accordion”; if an arm does not telescope (either like a presentation pointer, an accordion, or in
`
`some other way), then it is not a “telescoping arm.”
`
`TMT seeks through claim construction to read “telescoping arm” out of the claims
`
`entirely. Under TMT’s proposed construction, no telescoping arm is required. Instead, the
`
`claims can be met by a set of arms—none of which telescopes—if the set of arms expands
`
`outward from a compressed to an expanded state, just as the wire stents in all of the prior art to
`
`the ’393 patent did. The Court should reject TMT’s faulty construction and adopt Medtronic’s.
`
`3 This statement, as well as Figure 13 and its corresponding description, do not appear in the
`provisional patent application to which the ’393 patent claims priority. See Dkt. 42-4.
`
`
`
`8
`
`

`

`Case 6:20-cv-00973-ADA Document 87 Filed 06/28/21 Page 12 of 24
`
`See Phillips v. AWH Corp., 415 F.3d 1303, 1312-19 (Fed. Cir. 2005).
`
`First, the starting point for claim construction asks what the plain and ordinary meaning
`
`of a term is to a skilled artisan as of the patent’s effective filing date. Phillips, 415 F.3d at 1312-
`
`13. As the Court has already recognized, “telescoping” has a plain meaning that the Court and
`
`jury can understand. See Dkt. 34 at 9:6-7. And importantly, there was no specialized meaning
`
`of “telescoping” in the art when the patent was filed. Chaikof Decl. ¶ 77.
`
`Second¸ because there was no specialized meaning of “telescoping” in the art, the Court
`
`must look to the ’393 patent’s written description—the “single best guide to the meaning of a
`
`disputed term,” Phillips, 415 F.3d at 1315—to understand the proper meaning of “telescoping
`
`arm.” In this respect, the ’393 patent’s written description is clear that each arm must telescope:
`
`The expandable attachment device comprises a plurality of telescoping arms that are
`attached to form an expandable ring. Each telescoping arm is similar to an
`expandable presentation pointer. Alternatively, each telescoping arm may function
`like an accordion.
`
`’393 patent, 2:38-40.
`
`
`
`TMT’s proposed construction contradicts the written description’s statement that
`
`“each” arm telescopes. Indeed, the deposition testimony of TMT’s principal and sole named
`
`inventor, Dr. Sarac, confirms that TMT’s proposed construction is designed to further a
`
`reading of the claims that directly conflicts with the words of the written description:
`
`[A]s you sit here today, your testimony is that when you refer to telescoping,
`Q.
`it’s the entirety of the stent that is telescoping. Correct?
`A.
`It’s the potential entirety of the stent that is telescoping, that would be
`correct. . . .
`Q.
`Okay. But each individual arm does not need to function like an accordion.
`A.
`That is –
`Q.
`Correct?
`A.
`That - that would be correct. Each individual arm does not need to function
`like an accordion.
`
`Lantier Decl. Ex. 2, Sarac Depo. Tr. at 193:16-195:13; contra ’393 patent, 2:38-40.
`
`
`
`9
`
`

`

`Case 6:20-cv-00973-ADA Document 87 Filed 06/28/21 Page 13 of 24
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`Dr. Sarac’s purported understanding and TMT’s proposed construction—that no
`
`individual arm need telescope—would render the ’393 patent’s written description nonsensical.
`
`The ’393 patent expressly distinguishes “M springs” in Figure 9 (straight arms that collectively
`
`expand like an accordion) from “telescoping arms” in Figure 15. An image of relevant portions
`
`of the different figures is below.
`
`
`(b) Figure 15: “Telescoping arms in an
`‘M configuration’”
`The “M springs” shown in Figure 9 would satisfy TMT’s proposed construction of “telescoping
`
`(a) Figure 9: “M spring”
`
`arms,” as they have arms that individually lack any telescoping functionality (each is just a piece
`
`of wire), but, under TMT’s interpretation, they would collectively expand like an accordion. Yet
`
`the “M springs” of Figure 9 are never described as “telescoping arms.” They are described as an
`
`alternative to the “telescoping arms” depicted in Figure 15: “the M springs 68 [of Figure 9] may
`
`be replaced by telescoping arms 40 [of Figure 15] in an “M configuration.” ’393 patent, 6:37-
`
`39. TMT’s proposed construction would equate the M springs of Figure 9 with the telescoping
`
`arms of Figure 15, even though the ’393 patent expressly distinguishes them from one another,
`
`rendering a clear distinction drawn in the ’393 patent meaningless.
`
`Third, the prosecution history confirms that Medtronic’s proposed construction is correct.
`
`Phillips, 415 F.3d at 1317. The Patent Office has consistently interpreted “telescoping arms” to
`
`require that each arm telescope. Chaikof Decl. ¶ 84; see also Lantier Decl., Ex. 3, CIP
`
`
`
`10
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`

`

`Case 6:20-cv-00973-ADA Document 87 Filed 06/28/21 Page 14 of 24
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`Application at 93-94; Ex. 4, Lazarus at Fig. 7, 10:33-41; Ex. 5, Yadav at Fig. 1, Fig. 2, 3:7-19.
`
`Finally, extrinsic evidence consistent with the intrinsic evidence supports Medtronic’s
`
`proposed construction. Phillips, 415 F.3d at 1317. Dictionaries define “telescoping” to mean:
`
`“1. To cause to slide inward or outward in overlapping sections, as the cylindrical sections of a
`
`small hand telescope do; [or] 2. To make more compact or concise; condense.” Lantier Decl.,
`
`Ex. 6, Am. Heritage.4 The extrinsic evidence shows “arms” that telescope like an accordion, i.e.,
`
`they condense typically by having collapsing bellows. See, e.g., Lantier Decl., Ex. 8, Sneider;
`
`Ex. 9, Eastman. Moreover, the absence of any extrinsic evidence describing the radial
`
`compression and expansion of circular stent grafts as “telescoping,” despite copious published
`
`literature about expanding endovascular stents by the filing of the ’393 patent, confirms that
`
`TMT’s construction is wrong. Chaikof Decl. ¶ 85-87.
`
`TMT’s arguments against Medtronic’s proposed construction are without merit for two
`
`reasons. First, Medtronic’s proposed construction is not overly broad. The patentee has not
`
`limited the “telescoping” functionality in its patent to just the presentation pointer and accordion
`
`embodiments. See Cont’l Cirs. LLC v. Intel Corp., 915 F.3d 788, 797 (Fed. Cir. 2019). There
`
`are multiple other ways a single arm may telescope. The figure below, for example, includes
`
`four different ways an arm can telescope, including (but not limited to) like an “accordion”
`
`(image (a)) or a “presentation pointer” (image (b)).
`
`
`4 See also Lantier Decl., Ex. 7, Funk & Wagnalls (“1. To drive or slide together so that one part
`fits into another in the manner of the sections of a small telescope. 2 To crush by driving
`something into or upon. 3 To represent in a compressed or shortened form, as a period of time. -
`v.i. 4 To crash or be forced into one another, as railroad cars in a collision.”).
`
`
`
`11
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`

`

`Case 6:20-cv-00973-ADA Document 87 Filed 06/28/21 Page 15 of 24
`
`,. ,
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`Second, Medtronic’s proposed constructions do not violate claim differentiation
`
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`
`principles or render claim 3 superfluous, as TMT contends. Dkt. 42 at 12-13. The doctrine of
`
`claim differentiation counsels against importing a limitation from a dependent claim into the
`
`independent claim from which it depends, such that the independent and depend claim become
`
`coextensive. AK Steel Corp. v. Sollac & Ugine, 344 F.3d 1234, 1242 (Fed. Cir. 2003); see also
`
`Phillips, 415 F.3d at 1314-15. Dependent claim 3 does not recite a requirement that individual
`
`arms telescope—it requires that “the telescoping arms are configured so that an increase in the
`
`perimeter of variable length results in an increase in a height of the device.” ’393 patent, claim
`
`3. In other words, claim 3 requires that when the stent expands outwards, it also increases in
`
`height. TMT improperly assumes that a plurality of individual arms that telescope (as the claims
`
`require) always results in an increase in a height of the stent. Dkt. 42 at 13. That is simply
`
`wrong: whether a circular stent with telescoping arms increases in height does not depend only
`
`on whether the individual arms telescope (because other factors, like the amount of telescoping,
`
`how much the arms rotate, and the direction of the rotation also come to bear on whether the
`
`height changes). Chaikof Decl. ¶ 88. Thus, claim differentiation does not support (much less
`
`compel) TMT’s proposed construction.
`
`D.
`
`Disputed term: “perimeter of variable length” (claim 1)
`
`Term
`
`Medtronic’s Construction
`
`TMT’s Construction
`
`
`
`12
`
`

`

`Case 6:20-cv-00973-ADA Document 87 Filed 06/28/21 Page 16 of 24
`
`“perimeter of variable length”
`
`“boundary that has a varying
`length as each arm telescopes”
`
`no construction required; plain
`and ordinary meaning
`
`Medtronic’s proposed construction is consistent with the plain and ordinary meaning of
`
`the terms and is being offered to help the jury understand what this term means in the context of
`
`the stents described in the claims. CollegeNET, Inc. v. MarketLinx, Inc., No. A-09-CA-544-SS,
`
`2010 WL 11566364, at *7 n.9 (W.D. Tex. Sept. 14, 2010) (quoting Power-One, Inc. v. Artesyn
`
`Techs., Inc., 599 F.3d 1343, 1348 (Fed. Cir. 2010)) (“The Court notes ‘[t]he terms, as construed
`
`by the court, must ensure that the jury fully understands the court’s claim construction rulings
`
`and what the patentee covered by the claims.’”). The term “perimeter of variable length” does
`
`not appear in the written description. When the word perimeter does appear in the written
`
`description, it is used to describe the total length of the boundary of the attachment device that is
`
`defined by the variable length of each telescoping arm. See, e.g., ’393 patent at Figs. 4A-4C.
`
`This is consistent with the plain meaning of perimeter. See Lantier Decl. Ex. 10, Dict. Science &
`
`Tech. (defining “perimeter” as “the boundary of a closed plane figure” or “the length of a closed
`
`curve bounding a plane figure”); Ex. 11, Dict. Science & Tech. Terms (defining “perimeter” as
`
`“[t]he total length of a closed curve; for example, the perimeter of a polygon is the total length of
`
`Disputed terms: “operatively connected” / “connected” (claims 1, 26) & “the
`arms being operatively connected to one another so as to form a perimeter of
`variable length” (claim 1)
`
`its sides”).
`
`E.
`
`Term
`“operatively
`connected” /
`“connected”
`
`Medtronic’s Construction
`“distinct structures
`functionally connected”
`
`TMT’s Construction
`“connected”: no construction required;
`plain and ordinary meaning
`
`“operatively connected”: “the arms being
`connected to one another to form a
`perimeter of variable length capable of
`reducing leakage around the perimeter of
`the tubular sleeve”
`“the arms being connected to one another
`
`“the arms being
`
`“the arms being distinct
`
`
`
`13
`
`

`

`Case 6:20-cv-00973-ADA Document 87 Filed 06/28/21 Page 17 of 24
`
`operatively connected
`to one another so as
`to form a perimeter of
`variable length”
`
`structures functionally
`connected to one another
`so as to form a boundary
`that has a varying length
`as each arm telescopes”
`
`to form a perimeter of variable length
`capable of reducing leakage around the
`perimeter of the tubular sleeve”
`
`Medtronic’s constructions are substantially similar to the terms in Section IV.F, and
`
`Section IV.F is incorporated by reference.
`
`F.
`
`Disputed term: “operatively coupled” / “coupled” (claims 1, 26) & “the
`telescoping arms are operatively coupled to one another at an angle so that
`multiple telescoping arms form the shape of a M” (claim 1)
`
`Term
`“operatively
`coupled” /
`“coupled”
`
`Medtronic’s
`Construction
`“distinct structures
`functionally coupled”
`
`“the telescoping
`arms are operatively
`coupled to one
`another at an angle
`so that multiple
`telescoping arms
`form the shape of a
`M”
`
`“the telescoping arms
`are distinct structures
`functionally coupled
`to one another at an
`angle so that multiple
`telescoping arms
`form the shape of a
`M”
`
`TMT’s Construction
`“coupled”: no construction required; plain and
`ordinary meaning
`
`“operatively coupled”: “the telescoping arms are
`positioned in multiple planes at an angle so that
`multiple telescoping arms form the shape of a M
`capable of exerting enough radial force when
`expanded to fix into the aorta and thereby reduce
`blood leaks around the endovascular graft”
`“the telescoping arms are positioned in multiple
`planes at an angle so that multiple telescoping
`arms form the shape of a M capable of exerting
`enough radial force when expanded to fix into the
`aorta and thereby reduce blood leaks around the
`endovascular graft”
`
`The terms “operatively connected” and “connected” are used synonymously in claims 1
`
`and 26. So too are the terms “operatively coupled” and “coupled.” Therefore, these sets of
`
`terms should be consistently construed.
`
`Medtronic’s proposed constructions are consistent with the plain meaning of connected
`
`and coupled. Ex. 10, Dict. Science & Tech. (defining “connection” as “the act of joining
`
`together” and “couple” as “to connect parts or vehicles at their ending points with a coupling
`
`device” or “a system of two equal but opposite forces that are applied at different locations,
`
`
`
`14
`
`

`

`Case 6:20-cv-00973-ADA Document 87 Filed 06/28/21 Page 18 of 24
`
`producing a torque”). The proposed constructions are also consistent with the intrinsic record, as
`
`each embodiment in the patent depicts telescoping arms that are functionally connected and
`
`coupled to one another. See, e.g., ’393 patent, 5:12- 25, 5:36-41, Figs. 4A-4C, Fig. 13.
`
`TMT’s proposed constructions, on the other hand, improperly rewrite the claims by
`
`introducing numerous functional limitations into structural claim elements. TMT includes
`
`additional unclaimed features, such as “capable of reducing leakage around the perimeter of the
`
`tubular sleeve” and “positioned in multiple planes at an angle . . . capable of exerting enough
`
`radial force when expanded to fix into the aorta and thereby reduce blood leaks around the
`
`endovascular graft.” Dkt. 42 at 14, 17. TMT’s blatant attempt to import functional and intended
`
`purpose limitations into the claims should be rejected. See, e.g., Arthrex, Inc. v. Smith &
`
`Nephew, Inc., 935 F.3d 1319, 1330 (Fed. Cir. 2019) (affirming that a claim term should not be
`
`construed to include functional features from a preferred embodiment); Woods v. DeAngelo
`
`Marine Exhaust, Inc., 692 F.3d 1272, 1284 (Fed. Cir. 2012) (affirming construction that did not
`
`include function for the claimed “elongated outer shell” where the structure was not defined as
`
`performing that function in the written description).
`
`Indeed, nothing in the intrinsic records specifies that reducing leakage is a requirement of
`
`the purported invention—and certainly not of the claimed “operatively connected” limitation.
`
`Nor does the intrinsic record specify that “operatively coupled” only means positioning the
`
`telescoping arms in multiple planes such that the arms are capable of exerting enough radial
`
`force to reduce leakage. The Court should reject this attempt to alter the claims through claim
`
`construction and adopt Medtronic’s propose

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